IF THERE WAS A SEARCH & SEIZURE WITHOUT A WARRANT, HAS THE STATE PROVEN THAT IT WAS REASONABLE?  
(Continued- Pages 179-256)
C.     Was the search incidental to a lawful arrest? Kyser v. State, 533 So. 2d 285 (Fla. 1988); London v. State, 540 So. 2d 211 (Fla. 2d DCA 1989); State v. Maya, 529 So. 2d 1282 (Fla. 3d DCA 1988); Stone v. State, 547 So. 2d 657 (Fla. 4th DCA 1989)(en banc); State v. Howard, 536 So. 2d 1979 (Fla. 5th DCA 1989); Williams v. State, 531 So. 2d 246 (Fla. 5th DCA 1988). [Back]

1.  Definition of an arrest.  [Back]

a.  Kyser v. State, 533 So. 2d 285 (1993), holds that for there to be an arrest there must be four elements: (1) intent to make an arrest "under real or pretended authority;" (2) "an actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested;" (3) communication of the intent to arrest; (4) understanding by the suspect that the officer intends to arrest and detain him or her. Brown v. State, 623 So. 2d 800 (Fla. 4th DCA 1993). See also Melton v. State, 75 So. 2d 291 (Fla. 1954); Elliot v. State, 704 So. 2d 606 (Fla. 4th DCA 1997).

b.  For a discussion of constructive seizure see Elliot v. State, 704 So. 2d 606 (Fla. 4th DCA 1997).

2.  The Court noted that in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the Court recognized two rationales for allowing a search incident to arrest: "(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial." Knowles v Iowa, 119 S.Ct. 484 (1998).

3.  There must be probable cause or a valid warrant.   [Back]

a.  The arrest only need be supported by probable cause not necessarily a prima facie case. Davis v. State, 602 So. 2d 606 (Fla. 2d DCA 1992).

b.  Probable cause may be based on any of officer's senses including the sense of touch. Rodriguez v. State, 557 So. 2d 68 (Fla. 3d DCA 1990).

c.  A void or nonexistent warrant may not be the basis for a legal arrest and search even though the officer is unaware of the flaw. State v. Gifford, 558 So. 2d 444 (Fla. 4th DCA 1990).

d.  The observation of opaque containers, such as hand-rolled cigarettes, without something more, is insufficient to establish probable cause. The additional element was present where officers had sufficient experience to recognize the object as one commonly used to hold cocaine at a site where narcotics were frequently transported. Cross v. State, 560 So. 2d 228 (Fla. 1990). See also Johnson v. State, 565 So. 2d 413 (Fla. 3d DCA 1990).

e.  A trained narcotics detection dog's positive indication for drugs provides probable cause for a vehicle search. State v. Russell, 557 So. 2d 666 (Fla. 2d DCA 1990); State v. Taswell, 560 So. 2d 257 (Fla. 3d DCA 1990).

f.  Dog’s alert on driver’s seat gave the officer probable cause to search the vehicle, but not the driver’s person. Bryant v. State, 779 So. 2d 464 (Fla. 2d DCA 2000).

g.  For factors to consider in determining whether there was probable cause to believe the defendant was in possession of drug paraphernalia see Baggett v. State, 562 So. 2d 359 (Fla. 2d DCA 1990).

h.  An arrest was valid where there was probable cause to believe that the defendant was in possession of cocaine even though it turned out that it was not cocaine. McCoy v. State, 565 So. 2d 860 (Fla. 2d DCA 1990).

i.  The defendant was sitting on a curb alone. A deputy received a tip that a black male in his forties, wearing burgundy pants and a white shirt was selling drugs at a certain address. The defendant matched the description and was sitting on the curb alone at the location whittling with a knife. A cigarette pack was about one foot away from the defendant. As the deputy reached for the pack, the defendant reached toward it, but pulled back. The deputy found crack cocaine inside the pack. The officer arrested the defendant for possession. On appeal, the court ruled that the officer did not have probable cause because there was nothing to show that the defendant was ever in possession of the pack. Johnson v. State, 741 So. 2d 1223 (Fla. 2d DCA 1999).

j.  The defendant was one of several individuals in a vehicle that officers stopped. The defendant was asked to exit. An officer "noticed a brown paper bag which was near the front tire area of the passenger's side of the police car, about a foot from where McGowan was standing. The officer had not noticed the bag before McGowan was removed from the vehicle. The bag contained more baggies with orange stripes. Two of the baggies had white residue in them which tested positive for cocaine." One officer had walked past that area "moments before McGowan had been moved there and had seen nothing." The officers arrested the defendant on drug charges. The trial judges denied a motion to suppress. On appeal, the court reversed. The court said that the State would have to rely on constructive possession. "Mere proximity to contraband found in a public place and in the vicinity of several other people does not warrant a finding that the police officer had probable cause to believe that the person or persons closest to the contraband possessed it.... In this case, the only evidence connecting the brown paper bag to McGowan other than his proximity to the bag is the fact that it contained tiny baggies with orange stripes which were identical to the empty baggies McGowan carried in his jacket. However, it is possible that the other passengers in the vehicle could have obtained similar baggies. Accordingly, we conclude that the trial court erred in finding that the abandoned bag could be attached to McGowan. It follows that the police did not have probable cause to arrest McGowan for possession of cocaine." McGowan v. State, 778 So. 2d 354 (Fla. 2d DCA 2001).

k.  A deputy made a valid traffic stop. There were two people in the car. The driver consented to the deputy searching the vehicle. Upon entering the vehicle the officer detected a "‘hint’" of burnt marijuana. When he opened the ashtray, he detected residual marijuana. The driver said the marijuana was not his and consented to a patdown search. The officer then searched the passenger, who was the defendant in this case, and found a small baggie of marijuana. The trial judge denied a motion to suppress. On appeal, the court reversed because there was no probable cause to arrest the defendant prior to the search of his person. The court concluded that there was no evidence to show that the defendant had knowledge of the marijuana in the ashtray. "We find it significant that the deputy's testimony did not indicate that the marijuana in the ashtray had been smoked recently." Mere proximity to the contraband was insufficient. Zandate v. State, 779 So. 2d 476 (Fla. 2d DCA 2000).

l.  Juvenile court warrants remain valid until successfully challenged or revoked by the court even where the offender reaches the age of majority before it is executed. Campbell v. State, 571 So. 2d 415 (Fla. 1990).

m.  Where the police rely upon known and reliable informants, as long as the information is sufficiently detailed and can be verified, a detention and search based upon such information will be upheld. State v. Flowers, 566 So. 2d 50 (Fla. 2d DCA 1990). For a case dealing with the need for sufficient corroboration see Key v. State, 553 So. 2d 301 (Fla. 1st DCA 1989).

n. Where an officer mistakenly believed that the defendant was the person named in a warrant, that mistake did not invalidate the arrest where the error was reasonable under the circumstances. This result was not altered by the fact that the true subject of the warrant was already in custody because there was no showing of excessive delay in purging the records of the warrant. Mayberry v. State, 561 So. 2d 1201 (Fla. 2d DCA 1990).

o.  At 4:00 a.m. an officer discovered a recent burglary and theft of several rolls of change from a diner. The cook at a nearby restaurant told the officer that, during the past few hours, the defendant, and another person had paid for a meal with change and had played video games requiring coins at a nearby convenience store. This caused the officer to suspect that the defendant was involved in the theft because he knew the defendant was in financial distress and was unlikely to have a lot of money. He knew that the defendant was living in a friend's tree house so he and another officer went there and did a warrantless search and asked the defendant to empty his pockets. They discovered coins. The Court held that there was no probable cause for the search. Talley v. State, 581 So. 2d 635 (Fla. 2d DCA 1991).

p.  The fact that the officer observed rolling papers in the defendant's shirt without more was insufficient for a search where the only other circumstances were that the defendant was asleep in a legally parked car at about 10:00 or 11:00 p.m. Sites v. State, 582 So. 2d 813 (Fla. 4th DCA 1991).

q.  Where an officer had reasonable suspicion to believe the defendant might be violating the drug laws in his vehicle and a canine unit alerted on a specific place in the interior of the vehicle he had probable cause for a search and upon discovering drugs an arrest. Rogers v. State, 586 So. 2d 1148 (Fla. 2d DCA 1991).

r.An officer had reasonable suspicion to believe that the owner of the vehicle in which the defendant was a passenger was violating the drug laws. A search of that vehicle revealed that cocaine was in a compartment on the back of the front passenger seat. The defendant was in the front passenger seat. Three other people were in the rear of the vehicle. They were all asked to exit the vehicle when it was stopped. The defendant had not been implicated in any way in the drug activity except for her presence in the vehicle. After the drugs were found hidden in the compartment an officer insisted that she allow him to search her purse. Drugs were found. A Motion to Suppress was denied. On appeal the court reversed and stated: (1) in order for the search of her purse to be valid the officer would have to have had probable cause as to each of the elements for constructive possession since there was no indication that the defendant was in actual possession; (2) that means that the officer would have to have had reasonable grounds to believe that the defendant: (a) knew of the presence of the drugs, (b) knew of the illicit nature of the drugs, and (3) had or shared dominion and control over the drugs. Mere presence near the drugs is insufficient to establish such probable cause. There was no evidence of each of the three elements. For additional facts see discussion under investigatory stops. Rogers v. State, 586 So. 2d 1148 (Fla. 2d DCA 1991).

s.  "The existence of probable cause is measured by an objective standard, not based on an officer's underlying intent or subjective motivation." State v. T.P., 588 So. 2d 286 (Fla. 3d DCA 1991).

t.  "Probable cause to arrest is determined upon the totality of the circumstances with which the officer finds himself confronted, in light of the officer's knowledge and experience." The court found that there was probable cause for arrest based on the following circumstances: (1) the officer observed the defendant for about an hour at night in an area frequented by drug dealers; (2) the officer saw the defendant standing as if he were waiting for something or someone to come along; (3) the defendant was standing in an area not normal for pedestrian traffic; (4) the defendant walked in the opposite direction each time the patrol car approached and acted nervous; (5) later that night the officer saw the defendant partially concealed in the woods; (6) the officer then approached the defendant and asked him if he would mind emptying his pockets; (7) the defendant pulled out his front pockets and produced a package of cigarettes from the back pocket; (8) he pulled a small plastic bag out of his pocket and attempted to conceal it; (9) the officer noted that based on his experience such bags are used to carry narcotics and the way the defendant was tried to conceal it is a common method used to attempt to hide drugs from officers. "An officer may properly take into account such circumstances as these in determining the existence of probable cause to believe that 'an innocuous item' contains contraband." Harris v. State, 590 So. 2d 551 (Fla. 1st DCA 1991).

u.  The court found that an officer had probable cause where: (1)an officer stopped a vehicle on a traffic matter; (2) since the windows were tinted he asked the occupants to exit; (3) upon exiting the defendant attempted to hide the front of his body by walking sideways; (4) the officer noticed a bulge in the groin area which was about 8 inches long and 4 inches wide; (5) the officer thought it might be a weapon; (6) the officer alerted another officer who also saw the bulge and thought it might be a weapon; (7) the second officer placed the defendant against his car and told him to remove the object; (8) when the defendant failed to comply, the officer performed a pat down and realized that the bulge was not a weapon; (9) he believed that it was cocaine because of the texture of what appeared to be a plastic bag and "'the peanut brittle type feeling in it'"; (10) the officer testified that he had made over 250 arrests for possession of a controlled substance, had been present during about 1000 such arrests, and had seen or felt crack cocaine about 800 times; (11) the officer testified that during 130 search warrant arrests, he had discovered cocaine hidden in the groin area on 70 occasions. All of these facts, including the specific information, was sufficient to establish probable cause. In proving probable cause "The State must present more than the naked subjective statement of a police officer who has a 'feeling' based on 'experience' that the accosted citizen is committing a crime in order to provide the court with facts upon which a determination of probable cause can reasonably be made." Doctor v. State, 596 So. 2d 442 (Fla. 1992).

v.  Even where sufficient information is provided by an unidentified informant to justify an investigatory stop the officer may not conduct a search or make an arrest. "When that type of verifiable information is furnished together with unverifiable allegations of criminal activity, a detention and search of a person so anonymously informed against is not authorized. There must be independent evidence of criminal activity apart from the otherwise verified anonymous tip to support a search of the described suspect." The fact that an unidentified informant gave detailed information that anyone could have known, which was confirmed, may be sufficient for a stop, but it was not sufficient for a search. Furthermore, the fact that a suspect who was described by the informant as dealing drugs began to flee does not provide sufficient grounds for a search. Cunningham v. State, 591 So. 2d 1058 (Fla. 2d DCA 1991).

w.  "We hold that when a trained law officer observes a particularly nervous driver accompanied by occupants of the vehicle who cannot agree if they are related or not and then finds conclusive evidence that the gas tank has been altered and the vehicle is on a highway frequented by drug smugglers, probable cause exists to extend a consent search into a probable cause search." State v. Jones, 592 So. 2d 363 (Fla. 5th DCA 1992).

x.  "A description in a police BOLO, coupled with proximity in time and place to the scene of the crime, furnish reasonable grounds for an officer's belief that appellant had committed a felony." State v. Joseph, 593 So. 2d 594 (Fla. 3d DCA 1992).

y.  A defendant was stopped pursuant to a BOLO. There was a question as to the validity of the stop. During the contact the officer thought the defendant was about to flee and grabbed him. There was a struggle and drugs fell from the defendant's pocket and the officer seized them. The seizure was upheld. The court said, "a battery upon a law enforcement officer, even one attempting an invalid arrest, is illegal. Hence, in this case, evidence seized as incident to the lawful arrest for resisting arrest with violence is not subject to suppression." Reed v. State, 606 So. 2d 1246 (Fla. 5th DCA 1992).

z.  Incorrect information was communicated to the arresting officer indicating that the defendant's license was suspended. This resulted either from miscommunication or misinterpretation. "Based on the 'collective knowledge' or 'fellow officer' rule, an otherwise illegal arrest cannot be insulated from challenge by the fact that the arresting officer relied on erroneous radio information from a fellow officer." This is not a mistaken identity case. The initial stop for equipment violation was proper, but the arrest for driving on a suspended license was unlawful. Walker v. State, 606 So. 2d 1220 (Fla. 2d DCA 1992).

aa.  An officer stopped the defendant for speeding. He was erroneously told over the radio that the defendant had a suspended license and then subsequently that it was expired, canceled, or revoked. The officer arrested the defendant, did a pat-down search, and discovered marijuana. It turned out that the defendant's license had been expired for less than four months, which is an infraction for which no arrest is authorized. Thus, pursuant to State v. White, 660 So. 2d 664 (Fla. 1995), the search was unlawful. White holds "that an arrest based on erroneous computer information supplied by law enforcement personnel required suppression of the evidence seized incident to the arrest." Bruno v. State, 704 So. 2d 134 (Fla. 1st DCA 1997).

bb.  Under the "fellow officer rule" a/k/a the "collective knowledge doctrine" an arresting officer may assume probable cause to arrest based upon information supplied by other officers. The arresting officer may make a valid arrest despite his/her lack of personal knowledge if the police, as a whole, have sufficient information to establish probable cause. The same is true of reasonable suspicion. The arrest or stop is valid if the arresting or stopping officer acts upon the direction or as a result of a communication from a fellow officer or another police department who had probable cause or reasonable suspicion. Voorhees v. State, 699 So. 2d 602 (Fla. 1997).

cc.  One officer (Officer A) had knowledge that the defendant was involved in a pending deportation proceeding, was always armed, and had been previously apprehended by INS. That officer asked another officer (Officer B) to stop the vehicle in which the defendant was a passenger. After stopping the car, Officer B patted the defendant down. Officer A was standing next to Officer B during the pat down. Officer B discovered a gun. Officer B said that he patted the defendant down for officer safety, but that he had no idea who the defendant was or whether or not he was armed. "Not knowing these things he had to assume the worst, so he patted [the defendant] down." The trial judge denied a motion to suppress. On appeal the court affirmed. An INS agent had the right to question aliens about their immigration status. "In order to justify a seizure, however, the agent must articulate objective facts providing a reasonable suspicion that the subject of the seizure was an alien illegally in this country." Here the INS agent (Officer A) had sufficient facts to establish reasonable suspicion. He testified that he knew that "Smith was previously apprehended by INS, was involved in a pending deportation proceeding, and was known to be always armed." While Officer B had none of this information, he had the authority to detain the defendant pursuant to the "fellow officer" rule. Which allows an officer to presume that his or her fellow officers who tell him to make a stop have probable cause or reasonable suspicion. "It is enough that the police officer initiating the chain of communication either had first-hand knowledge or received information from some person, usually the victim, official source, or eye witness, who it seems reasonable to believe is telling the truth. See Salas v. State, 246 So.2d 621, 622 (Fla. 3d DCA 1971). The "fellow officer" rule is applicable whether the communication is from a superior, a fellow officer with the same police department, between different agencies or agencies at different levels within a state, between officials in different states, and between federal and state or local authorities." Smith v. State, 719 So. 2d 1018 (Fla. 3d DCA 1998).

dd.  An officer was watching an intersection from a tree for the purpose of catching people running a stop sign. The officer directed another officer to stop the defendant’s vehicle. As a result contraband was discovered. The trial judge granted a motion to suppress because the officer in the tree did not come down and identify the vehicle. On appeal, the court reversed. "The ‘fellow officer’ rule or doctrine ‘operates to impute the knowledge of one officer in the chain of investigation to another.’ State v. Evans, 692 So.2d 216, 218 (Fla. 4th DCA 1997). As stated in Crawford v. State, 334 So.2d 141, 142 (Fla. 3d DCA 1976), an ‘arresting officer is not required to have sufficient firsthand knowledge to constitute probable cause. It is sufficient if the police officer initiating the chain of communication ... had first hand knowledge.’ Huebner v. State, 731 So.2d 40, 44 (Fla. 4th DCA 1999); see also Ferrer v. State, 785 So.2d 709, 711 (Fla. 4th DCA 2001)(same)." State v. Adderly, 809 So. 2d 75 (Fla. 4th DCA 2002).

ee.  Where officer observed the defendant make an abrupt U-Turn and proceed through a residential area at speeds exceeding 80 m.p.h., he had probable cause to make an arrest for reckless driving. State v. Orozco, 607 So. 2d 464 (Fla. 3d DCA 1992).

ff.   The officer had facts indicating that some occupants of a vehicle may have been involved in a petit theft of cigarettes. When the defendant, who was a passenger, exited the vehicle after it was stopped, the officer observed two packs of cigarette of the type that had been stolen on the floor of the passenger side. There were no markings, however, indicating that they came from the involved store. The officer arrested the defendant for retail theft and searched the defendant. On appeal the Court found the arrest unlawful. "Without more than occurred here, the mere fact that the appellant was a passenger in a car also containing a person who was suspected of a crime is insufficient to create probable cause." Giles v. State, 598 So. 2d 209 (Fla. 2d DCA 1992).

gg.  During a traffic stop the defendant, while reaching over to the glove department, picked up a piece of paper which was folded into a small opaque square and put it in his pocket. The officer's observation of the opaque paper did not give him probable cause to search the defendant. Bozeman v. State, 603 So. 2d 585 (Fla. 2d DCA 1992).

hh.  Where officers observed a firearm which was readily visible when they looked into the car they lacked probable cause for a search of the car because possession of a gun which is not concealed is not a crime. Patrick v. State, 603 So. 2d 640 (Fla. 2d DCA 1992).

ii.  Where officers testified that upon looking through the windshield of the defendant's car they saw what appeared to be the handle of a large hunting-type knife lying on the floor between the seat and the door. The trial court found that the knife was not concealed for purposes of state statute. On appeal the Court upheld the trial judge. "[T]he knife was not concealed because the officers' testimony clearly shows that from a position outside the vehicle and without squatting or bending down they immediately recognized a knife and sheaf between the driver's seat and the door." The officer's arrested the defendant for carrying a concealed weapon and searched the vehicle finding other evidence. The court found that the search was improper because there was insufficient basis for the arrest. State v. Hardy, 610 So. 2d 38 (Fla. 5th DCA 1992).

jj.  An officer told the court when he felt a hard object during a pat down he was suspicious that it was cocaine, but he wasn't sure and that there was no way of knowing without seeing it. This was insufficient to establish probable cause for a search of the defendant's person. Hamilton v. State, 612 So. 2d 716 (Fla. 2d DCA 1993).

kk.  An officer made a lawful traffic stop of the defendant and his companion on a bicycle in the early morning hours. During the course of the contact, which included the issuance of a ticket, the officer observed in plain view that the defendant was holding what appeared to be a flight bag with two name tags on it, which bore the name Ms. Drysdale rather than the name of the defendant. These facts were sufficient to give the officer reasonable suspicion to detain the defendant beyond the time it took to issue the citation. The officer then had the right to demand an explanation, which he did. The defendant was unable to provide a response. According to another officer the defendant said that the bag belonged to his grandmother, but he did not state that her name was Ms. Drysdale. That officer also noted that the defendant had initially attempted to hide one of the name tags from him. Under these circumstances the court held that the officers had probable cause to arrest the defendant for theft of the bag and its contents. A search of the bag was then incidental to a lawful arrest. State v. Banfield, 614 So. 2d 551 (Fla. 2d DCA 1993).

ll.  An officer stopped the defendant for being on the property of a public housing project. The basis for the arrest on the charge of trespass given by the officer was a refusal or inability by the defendant to give the name of the person that he claimed he was there to visit. As a result of a search, evidence of drugs was found in the defendant's mouth. On appeal the court held that the arrest was without probable cause and that a motion to suppress should have been granted. A trespass occurs as to property other than a structure or conveyance when a person, without authorization, license, or invitation, willfully enters or remains on another's property where notice against entering or remaining has been given, either by actual communication to the offender or by posting, fencing or cultivation. In this case there was no probable cause because "there was no evidence of actual or constructive notice to the defendant against entering or remaining on the grounds of the public housing complex." Jones v. State, 613 So. 2d 127 (Fla. 3d DCA 1993).

mm.  The officer did not have probable cause to arrest the defendant for trespass; therefore, the arrest was unlawful. There was no actual communication to the defendant that he was not to enter or remain on the premises. The property was not posted. Assuming he was on "unenclosed curtilage," his act of putting something down his pants did not give rise to probable cause to believe that he was committing an offense on the property. Wright v. State, 792 So. 2d 1264 (Fla. 4th DCA 2001).

nn.  The defendant voluntarily opened her mouth and the officer observed cocaine. Based on those observations the officer had probable cause to believe that the defendant had drugs in her mouth and the officer had the right to force the defendant's mouth open. This is in contrast to the situation where the officer acknowledged that the item in the defendant's mouth could have been something other than drugs. Drayton v. State, 601 So. 2d 1248 (Fla. 2d DCA 1992).

oo.  A mall security officer had given the defendant both an oral notice and a written notice. The latter contained a six month limitation period, which the oral notice did not. The written notice was approved by the local police which had adopted the limitation period. Six months had expired from the time of both the written and oral notice. The defendant was seen in the mall and was arrested. Evidence was secured as a result of a search of the defendant. A motion to suppress was granted apparently on the grounds that the detention was unlawful because the six months had expired. On appeal the court ruled that the policy of a police department could not amend a statute. The statute contains no time limitation and the owner of a quasi-public establishment such as the mall involved in this case has the right to impose "reasonable nondiscriminatory restrictions pertaining to the use of" such a facility. Here the defendant had previously stolen from the stores in the mall. The court found the restriction reasonable and that the oral notice constituted a withdrawal of the implied invitation to enter the mall until further notice. State v. Woods, 624 So. 2d 739 (Fla. 5th DCA 1993).

pp.  Where the defendant had been lawfully stopped for investigation and detained for twenty minutes without questioning, officers developed probable cause to arrest him based on a statement that he was the owner of drugs found in a home occupied by another person and that he had paid her to store the drugs. His arrest after being detained for twenty minutes without being questioned was lawful. State v. Hanna, 622 So. 2d 46 (Fla. 3d DCA 1993).

qq.  An officer had probable to believe the defendant had drugs where: (1) he was in a area known for drug deals; (2) he saws the defendant handing money to another man; (3) the man took the money and opened his cupped hand toward the defendant; (4) the defendant looked into the hand, hesitated for a few seconds, and then reached in and took a small item; (5) the defendant immediately placed the item into his mouth; (6) the officer recognized both men as having previously been arrested for drug activity; (7) the officer had extensive experience and training in drug law enforcement; (8) because of the way the defendant pinched the object while picking it up, the officer believed it was rock cocaine; (9) it is common for drug users to place rock cocaine in the mouth in this fashion because it is a non-water soluble drug and can be easily transported in this fashion; (10) the hesitation that was observed was consistent with the selection involved in a drug purchase. All of these factors were properly considered and together established probable cause. A money transaction is not enough, but here there was much more. State v. Caicedo, 622 So. 2d 149 (Fla. 3d DCA 1993).

rr.  For an example of a finding of probable cause in a telephone fraud case see. State v. Aqqad, 637 So. 2d 255 (Fla. 2d DCA 1994).

ss.  The defendant was taken into protective custody under the Myers Act. As a result drugs were found on his person. Before that was done a woman, who was with the defendant on the street, said he had struck her. She had a cut lip. On appeal the court held that there was probable cause for a domestic battery arrest even though there was nothing indicating the relationship between the parties. That was important since there can be an arrest without a warrant for a domestic battery unlike other batteries. So the search could also be justified as incidental to a lawful arrest. State v. Hutchins, 636 So. 2d 552 (Fla. 2d DCA 1994).

tt.  The evidence, when considered in a light most favorable to the state, established that at about 11:30 p.m. an officer was contacted by a known CI. The officer had used information from this information many times in the past and it has resulted in felony arrests about 60 to 70 percent of the time. The CI told the officer that a black male, about 5'10" tall, wearing a black jacket, white t-shirt, and blue jeans, was selling powdered cocaine on the sidewalk in front of a specific address. The officer knew that location to be part of an area with a high volume of street level drug sales. The officer had seized cocaine at the same location a couple of months before. The CI told the officer that the drug dealer wrapped cocaine inside rolled-up one-dollar bills and placed them in his pants pocket ready to sell. Within 15 minutes of receiving the tip the officer saw the defendant standing on the sidewalk in front of the specified location. The defendant's clothes and appearance was exactly as the CI had described. The only other person in the location did not match the description. The officer approached the defendant. he patted down the defendant and felt a large, soft bulge in the defendant's pocket. The officer asked the defendant about the bulge. The defendant said that it was 28 one dollar bills. The officer reached into the defendant's pocket and retrieved the money, but found no cocaine. He reached into the pocket again and retrieved another folded dollar bill which contained powdered cocaine as the informant had described. The trial judge found that the CI provided probable cause for an arrest and search considering the totality of the circumstances. The First District reversed and certified conflict with other districts. The Supreme Court reversed the First District. The court went through a lengthy analysis, but these points were particularly important: (1) even though the tip did not contain the exact basis of knowledge, it did provide an abundance of detail; (2) personal knowledge could be inferred from the manner of packaging of the drugs and their exact location on the defendant's person; (3) there was a strong showing of the CI's veracity; (4)"Similarly, under Gates and its progeny, we conclude that the seemingly innocent activity observed here could be used by the police to verify the informant's tip[;]" (5) within minutes the police corroborated every item in the tip except for the fact that the defendant was carrying drugs; (6) the officer had other information which together contributed to the impact of the totality of the circumstances. The court goes through the history of the development of this area of the law. State v. Butler, 655 So. 2d 1123 (Fla. 1995).

uu.  There was some dispute as to whether the involved deputy's appointment might be irregular because the oath was improperly administered. This was a case certified from county court. On appeal the court found that it was unnecessary to resolve the issue as to the validity of the oath because at the very least the deputy was a de facto officer at the time of the arrest. "It is clearly established that the acts of officers in these categories are valid as to third persons and the public until their title to office is judicially adjudged to be defective." Farrell v. State, 650 So. 2d 88 (Fla. 4th DCA 1995).

vv.  The defendant was arrested for an ordinance violation for which there was no jail sentence. A search incidental to arrest discovered cocaine. The trial judge denied a motion to suppress. On appeal the court reversed. "It was illegal to arrest him for violating the ordinance or to search him incidental to that illegal arrest.... This ordinance did not provide for jail and therefore it did not provide for a full custodial arrest. Consequently, the officer had no authority to conduct a full custodial search of [the defendant] incident to the 'arrest'." The court noted that if an officer has reasonable suspicion to believe the defendant is armed the officer can do a pat down even where the stop is for an ordinance violation with no possible jail term. Beles v. State, 650 So. 2d 1092 (Fla. 3d DCA 1995).

ww.  The officer had probable cause. "In the present case the officer stopped the defendant in an alleyway behind closed businesses in the dark at six o'clock in the morning. This was in a deserted commercial area where no businesses were open. Defendant was carrying what appeared to be a sack containing squared-off objects that looked like appliances. When the defendant dismounted from his bicycle, he put the bag on the trunk of the officer's police car. On closer inspection, the officer could see that the bag was actually a makeshift container fashioned from a shirt, which would not be the customary method of carrying a piece of electronic equipment, but might well be fashioned as a temporary container for stolen goods. In response to the officer's question, the defendant claimed that his address was outside of Dade County, although he was riding a bicycle in a municipality well inside Dade County. The officer twice asked the defendant what was in the bag. The defendant twice gave the untruthful statement that the sack only contained a VCR, when the officer could plainly see a compact disc player protruding from the shirt sleeve. This occurred in an area with a recent burglary problem, and the officer was, in fact, on burglary surveillance at the time of these observations." It was not necessary for the officer to have actual knowledge that a burglary had occurred to have probable cause to arrest the defendant. State v. Russell, 659 So. 2d 465 (Fla. 3d DCA 1995).

xx.  The defendant argued that his arrest was without probable cause. On the day of the arrest the arresting officer had a conversation with another officer. That person told the arresting officer that the defendant was suspected of murder. She showed the arresting officer a photograph of the suspect and said that an arrest warrant was being obtained at that time. The warrant was in fact issued and mentioned on a radio dispatch. The arresting officer did not hear the radio report about the arrest warrant before he saw the defendant. When he saw the defendant he arrested him, based on his conversation with the other officer and without knowledge as to whether the warrant in fact had issued. Some courts have required "a direct communication link between officers who possess probable cause and the arresting officer. This often takes the form of a direct order that the arrest be affected ... but also can consist of general communications among officers at least one of whom possesses probable cause....[T]here is competent substantial evidence that [the arresting officer] fell within this particular category, since [the officer who told him about the situation of the defendant] had been in communication with persons who possessed probable cause and later communicated that confirmation to the [arresting officer]. We thus believe that the arrest, at a minimum, was supported by probable cause under the fellow-officer rule. Alternatively, we believe the existence of a valid warrant prior to arrest is itself sufficient to justify the arrest under the facts at hand. " Johnson v. State, 660 So. 2d 648 (Fla. 1995).

yy.  Officers were in an area known for drug activity and there had been a number of citizen complaints about people selling crack in the area. Two officers saw the defendant standing alone on the corner. They called out to him. The defendant approached the passenger side of the patrol car. The officer who was on the passenger side asked the defendant to step away from the car so that the officer could exit the car. As the officer pushed on the door to open it, the defendant held the door shut. The officer testified that the defendant was free to respond to him or not until he did that. The defendant then ran from the car and the officers chanced him. When they cornered him, one officer asked him why he had run. The defendant said he had just sold some crack cocaine to somebody. The officers arrested him and seized drugs from him. The act of holding the door closed was "extremely unusual behavior" and it created a founded suspicion. His flight provided additional grounds. The defendant's statement about selling crack provided probable cause for arrest. State v. Hamilton., 665 So. 2d 310 (Fla. 2d DCA 1995).

zz.  An officer saw a car at night across an intersection from him with its high beam headlights on. The officer turned around and stopped the car. The officer informed the driver that he had been stopped for the high beam violation, a civil infraction under § 316.238(1). The driver was unable to produce a driver's license. He appeared nervous, was shaking, and began looking around and began to sweat. He told the officer that he had only met his passenger a couple of hours before the stop. That was the defendant. The officer then spoke with the defendant. He told the officer that he knew the driver "for a while." The officer then returned to the driver. His head, shoulders, and arms moved up and down like he was rocking from side-to-side and back forth. The officer did not find this movement unusual, but in combination with the conflict of statements concerning how long the driver had known the passenger and the driver's nervousness, they caused the officer to believe that the defendant-passenger had either just been involved in a crime, was about to be, or was so involved at that time, possibly involving narcotics. It was then that the officer decided that the defendant was not free to go, but he did not tell this to the defendant. The officer called for a backup and a K-9 unit. Within 30-45 seconds after two more officers arrived, the defendant ran away and two officers chased him. The stopping officer arrested the driver for not having a valid license and searched the car. He discovered a concealed firearm under the passenger's seat. He then told the other officers by radio about this discovery. Another officer heard the report, captured the defendant and arrested him. He searched the defendant's person and discovered drugs. The trial judge denied a motion to suppress. On appeal the court affirmed because at the time of the search there was probable cause to arrest the defendant for carrying a concealed firearm. Robinson v. State, 667 So. 2d 384 (Fla. 1st DCA 1995).

aaa.  Officers were investigating a domestic disturbance. There had been information that one of the parties might have a gun. There were three individuals involved. The officers frisked them and found no gun. While the officers attempted to interview the witnesses, the wife, who was the defendant, "was very agitated, yelling and screaming and interfering with the investigation...." One detective asked the defendant four times to stop interfering. "At one point, she placed herself between the Detective and her husband as the Detective was trying to question the husband." The detective told the defendant to sit down and stop interfering. When she failed to follow those instructions for the fifth time the officer arrested her for resisting without violence. On appeal the court held that the officer had probable cause. The court also rejected the defendant's argument that she was merely exercising her First Amendment rights. "This is quite different from S.D. v. State, [627 So.2d 1261 (Fla. 3d DCA 1993)]. When she failed to comply with their requests and in fact placed herself between the officer and her husband whom they were questioning, the Officers were justified in arresting her." Lawrence v. State, 668 So. 2d 701 (Fla. 5th DCA 1996).

bbb.  "A person who is trained to recognize the odor of marijuana and who is familiar with it and can recognize it has probable cause, based on the smell alone, to search a person or a vehicle for contraband." T.T. v. State, 594 So. 2d 839 (Fla. 5th DCA 1992). See also State v. Bowden, 538 So. 2d 83 (Fla. 2d DCA 1989); State v. Jarrett, 530 So. 2d 1089 (Fla. 5th DCA 1988).

ccc.  The officer had lawfully stopped the defendant in a vehicle. A knapsack was in the car next to the defendant. An odor of marijuana came from the knapsack. That gave the officer probable cause to search the knapsack. Indialantic Police dept. v. Zimmerman, 677 So. 2d 1307 (Fla. 5th DCA 1996).

ddd.  "While we have held that the smell of cannabis alone can provide probable cause to search, we do not think we have held that odor alone is probable cause to arrest a person." State v. Reed, 712 So. 2d 459 (Fla. 5th DCA 1998).

eee.  The court found that the officer had probable cause to arrest the defendant. The officer "retrieved a cigar he suspected Reed had just discarded, which smelled of burning cannabis, and when Reed returned to his presence, [the officer] detected the odor of cannabis on [the defendant’s] person. That plus Reed’s implied admission he had been smoking the cigar and that it was cannabis - in response to [the officer’s] query whether he had more contraband on his person - gave [the officer] probable cause to believe a crime had been committed and that Reed had committed it." State v. Reed, 712 So. 2d 459 (Fla. 5th DCA 1998).

fff.  Officers had a tip from a ticket seller that when he sold some tickets to the defendant he saw a handgun on the floorboard of the passenger side of the vehicle. The officer corroborated it when he looked in the car and saw a portion of the gun in plain view. This was in contrast to the situation in Whiting v. State, 595 So. 2d 1070 (Fla. 2d DCA 1992), where the tip was just that there was a firearm in the vehicle, but no indication that it was concealed. Thus, in this case the officer had problem cause to arrest for a violation of the concealed firearm statute. State v. Williams, 679 So. 2d 1248 (Fla. 4th DCA 1996).

ggg.  In June of 1995 a detective received information from an allegedly reliable informant that the defendant sold cocaine out of a local bar. The informant gave the detective the defendant's address, a description of her car, and the tag number. On June 30, 1995, the informant told the detective that the defendant was then selling cocaine at the bar. The detective could not respond. Several hours later the informant told the detective that the defendant had just left the bar in her vehicle to go home and get more cocaine. The detective proceeded to the defendant's address where he found her car parked in the driveway. After five minutes the defendant left and began to drive along a route headed back to the bar. A marked police car stopped the defendant. The defendant consented to a search. The trial judge found that the stop was a pretext. On appeal the court held that the question was whether there was probable cause for the stop and the court found that there was. "The court in Butler recognized that a warrantless search is justified as founded on probable cause where, as here, the informant is known to be reliable, the informant's personal knowledge could be inferred from the details provided, and recent activity observed by the police could be used to verify information provided." Cochran v. Godon, 679 So. 2d 367 (Fla. 4th DCA 1996).

hhh.  An under cover agent was sitting in an unmarked car in a night club parking lot. The defendant approached him and asked for rolling papers "so he could roll a joint." The officer had just overheard the defendant ask two other people for rolling papers. When a marked patrol car rolled into the parking lot, the defendant ran. The undercover officer detained him and did a pat down, which revealed cocaine. The trial judge denied a motion to suppress. On appeal the court reversed. The request for rolling papers showed intent to smoke marijuana, but "it gave rise to two equally possible inferences: one that the appellant was in present possession of marijuana and two, that he was not. A probable cause determination will not arise where the conduct is at least equally consistent with noncriminal activity." Angaran v. State, 681 So. 2d 745 (Fla. 2d DCA 1996).

iii.  "Articulating precisely what 'reasonable suspicion' and 'probable cause' mean is not possible. They are common sense, nontechnical conceptions that deal with ' 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'' [citations omitted] We have described reasonable suspicion simply as 'a particularized and objective' basis for suspecting the person stopped of criminal activity [citation omitted] and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found [citations omitted]." Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

jjj.  Officers detained the defendant pursuant to Orlando's Youth Protection Ordinance, which prohibited minors from being present in downtown Orlando between certain hours, with some exceptions. The officers searched him and found a lot of money. The trial judge denied a motion to suppress. On appeal the court reversed. That ordinance only gave officers the authority to detain a minor if there was probable cause to believe that the minor had been abandoned or neglected or was in immediate danger from his surroundings and that his removal was necessary for his own protection. In this case there was no such probable cause and the officers only detained the defendant because he had no identification. Thus, the detention and the search was improper. Cuva v. State, 687 So. 2d 274 (Fla. 5th DCA 1997).

kkk.  The defendant was lawfully arrested for interfering with a drug operation by shouting out warnings to prospective dealers and the search was lawful. Porter v. State, 582 So. 2d 41 (Fla. 4th DCA 1991).

lll.  Officers had a founded suspicion that the defendant might have been engaged in a drug transaction. They did not make the stop. Instead they let the defendant go on his bicycle and warned another officer that the defendant was coming his way. The defendant entered a public restroom. Within minutes he came out and got a small bag and a aluminum beer can from his bike. He then went back to the restroom, entered a stall and closed the door. The officers suspected that the defendant was smoking crack, but they saw no illegal activity, smelled no smoke or the scent of burning drugs. Nevertheless, the officers rushed into the restroom and entered the stall. They caught the defendant in possession of crack cocaine. His motion to suppress was denied. On appeal the court reversed. The defendant had a reasonable expectation of privacy in the public restroom stall. "We cannot conclude, however, that the observance of an exchange, coupled with a hunch that the suspect intends to smoke cocaine through a beer can, are sufficient to reach a finding of probable cause.... (observation of bent beverage can in motel room did not give officer probable cause to conduct warrantless search.) Nor did matters of exigency provide the requisite probable cause; the officers here did not have the 'fresh, direct, uncontradicted evidence' of a criminal event necessary to prevail upon the exigency exception." Ramirez v. State, 654 So. 2d 1222 (Fla. 2d DCA 1995).

mmm.  The court found that an officer had probable cause to search the person of the defendant. He saw "a person known to the officer as one who hangs out on the streets and has been subject to various arrests, after looking around to assure himself that no one was watching, reach into his buttocks area under his pants and produce something from which he extracted something small, which he handed to two persons who had approached him in exchange for something that the officer could not identify. After the exchange, appellant again looked around to see if anyone was watching and replaced his ‘stash’ beneath his pants in his buttocks area." The officer was an experienced narcotics officer and the area was known for drug sales. Despite acknowledging that there were cases to the contrary, the court found that the officer had probable cause. "The officer clearly saw that a commercial exchange took place. Something was given for something else. A contract for the purchase and sale of something was consummated. It is not even necessary that the drugs have been exchanged for money." Williams v. State, 717 So. 2d 1109 (Fla. 5th DCA 1998).

nnn.  The involved officer had extensive training and experience in detecting narcotics and making narcotics arrests. He saw the defendant make several hand-to-hand transactions with people in vehicles. He saw an exchange of money for small packages. His training, experience, and knowledge of the area told him he was watching drug transactions in process." When the defendant saw the officer, he fled. About twenty minutes later the officer saw the defendant, patted him down, and found marijuana. The issue was whether the officer had probable cause. The court recognized conflict within the court. In Walker v. State, 636 So.2d 583 (Fla. 2d DCA 1994), the court ruled in a similar situation that there was not probable cause. In Revels v. State, 666 So.2d 213 (Fla. 2d DCA 1995), the court ruled that there was probable cause. The court chose to rely on Revels and ruled that there was probable cause. There is a strong dissent. D.A.H. v. State, 718 So. 2d 195 (Fla. 2d DCA 1998).

ooo.  Officers received a tip that stolen property was located on the involved premises and they believed that there was probable cause to search the involved backyard. "That [the officer] had a good faith belief there was stolen property on the premises is not dispositive. In order to legally search the property without a warrant [the officers] needed more than probable cause, they also must have been faced with exigent circumstances necessitating immediate action on their part." There were none in this case; therefore, the officers were required to secure a search warrant for the backyard. Potts v. Johnson, 654 So. 2d 596 (Fla. 3d DCA 1995).

ppp.  The officer was advised by a dispatcher that an unknown female had called and identified herself as the defendant’s mother. She stated that her son had just left her and he was intoxicated. She gave specific descriptions of her son and the car and the direction in which she believed her son was driving. Shortly after receiving the information, the officer saw a car matching the descriptions and in the location given by the caller. The officer stopped the defendant and identified the defendant as the driver. A search of the vehicle revealed drugs. The defendant argued that the officer did not have probable cause for the stop because the stop was based on an anonymous tip. The trial judge denied a motion to suppress. On appeal the court affirmed. The court found that the appropriate standard was reasonable suspicion, not probable cause. "[A]lthough the caller was a previously unknown female, the court finds that the tip was not anonymous because the caller identified herself as the mother of the person about whom she was calling." Thus, the court found that she was a citizen informant and, for that reason, her information was at the high end of the reliability scale. The court found that the information had sufficient indicia of reliability because the woman identified herself and the information was specific. The officer was also able to verify some things through personal observation prior to the search. He saw a beer can and a knife in plain view in the vehicle and detected an odor of alcohol coming from the defendant. These observations, along with the information from the mother, gave him probable cause to search the vehicle. Foy v. State, 717 So. 2d 184 (Fla. 5th DCA 1998).

qqq.  While driving with their windows down, "officers passed a large group. They smelled a strong odor of marijuana emanating from the cluster of people." As the officers approached the group, the odor became stronger. When they approached, the defendant started to walk away. When a detective told the defendant that he wanted to talk to him, the defendant continued to walk away. When the detective caught up to him, he noticed the odor. The detective asked the defendant if he could search him and the defendant consented. During the pat-down, the detective felt what he thought was a firearm, but it turned out to be brass knuckles. The defendant again searched the defendant and found marijuana. The detective testified that he was trained to recognize the odor of marijuana and had smelled it many times. The trial court granted a motion to suppress. On appeal the court said: "The odor of marijuana gave the officers probable cause to believe the members of the group had marijuana in their possession and, therefore, to search each person who was present.... The officers observed Hernandez as a member of the group from which the odor of marijuana emanated and, on that basis, had probable cause to stop and search him." State v. Hernandez, 706 So. 2d 66 (Fla. 2d DCA 1998).

rrr.  The defendants were arrested for loitering and prowling and they confessed to certain crimes. The defendants moved to suppress on the grounds that the arrest was illegal. The trial judge granted the motion and the state appealed. The court reversed. A neighbor saw the defendants back their car into the victim's enclosed garage in the middle of the day. The victim was at work. While one defendant stood by the car, the other looked into the window, while calling out to see if anyone was home. The neighbor did not recognize the individuals and called the police. A few minutes later, an officer arrived. The individuals were gone. He interviewed the neighbor and he saw pry marks on the door leading from the carport into the house. He could not determine whether the marks were fresh. That officer sent out a BOLO regarding a possible burglary and giving a general description of the car and its occupants. A few blocks away the defendant ran out of gas. An officer stopped to render assistance. This was about 1:30 p.m.. The defendants told the officer that they were on the way to a friend's house, but they didn't know the name or address of the friend. The officer found that suspicious and asked for identification. The other officer brought the neighbor to the scene and she identified the car as being the one at the scene. At 2:00 p.m. the officers arrested the defendants for loitering. On appeal the court found that the officers had probable cause to arrest for loitering and prowling. State v. Cortez, 705 So. 2d 676 (Fla. 3d DCA 1998).

sss.  Officers had probable cause for defendant’s arrest based on this information: (1) the defendant made inconsistent statements regarding his activities on the night of the murder; (2) he reacted nervously when police falsely reported that a fingerprint had been found on duct tape used in the crime; (3) he had unique knowledge of the location of the duct tape on the victim’s body; (4) unverified information from the victim’s family that the defendant was having difficulty in his relationship with the victim; (5) the defendant had repeatedly lied to police about his activity with the victim on the night of the murder; and (6) the defendant had a strong motive for murdering the victim. Walker v. State, 707 So. 2d 300 (Fla. 1998).

ttt.  The court ruled that the trial judge erred in finding that a C.I. provided sufficient information to establish probable cause for arrest of the defendant. The court reiterated the principle that veracity of the informant must be established. It can be established by proof that the information had provided reliable information in the past or has provided "detailed and verifiable information on the occasion in question." The court found that the evidence failed to meet this test. The officer testified that the informant had provided him with information on five prior occasions that resulted in four arrest for possession of cocaine, but in the previous cases the C.I. had acted as an agent for the police by making a controlled buy. This case was apparently the first case in which the informant actually provided a tip. That tip was merely that two black males, wearing certain common items, were standing in a public place selling narcotics. There was no evidence of the type of drugs, how the informant came by the information, or the manner in which the sales allegedly took place. The State relied here on reliable behavior in the past. "Reliable behavior, however, is not the same thing as reliable information for constitutional standards." Mitchell v. State, 787 So. 2d 224 (Fla. 2d DCA 2001). See also Everette v. State, 736 So. 2d 726 (Fla. 2d DCA 1999).

uuu.  "Probable cause to arrest or search exists when the totality of the facts and circumstances within an officer's knowledge sufficiently warrant a reasonable person to believe that, more likely than not, a crime has been committed. See Curtis v. State, 748 So.2d 370, 374 (Fla. 4th DCA 2000). ‘Articulating precisely what 'reasonable suspicion' and 'probable cause' mean is not possible. They are commonsense, nontechnical conceptions that deal with 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' ‘ Ornelas, 517 U.S. at 695, 116 S.Ct. 1657 (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983))." League v. State, 778 So. 2d 1086 (Fla. 4th DCA 2001).

vvv.  "[O]fficers received an anonymous tip that Peanut was selling drugs at his home. Peanut was known to the police and numerous complaints had been made. [T]he officer knew that Peanut had been arrested for drug activity. While anonymous tips are not in and of themselves sufficient to constitute either reasonable suspicion or probable cause, when independent investigation reveals corroboration of the substance of the tip, the totality of the circumstances may rise to either reasonable suspicion or probable cause. (citations omitted) The anonymous tip in this case was corroborated by the independent observation of conduct consistent with a drug transaction. Specifically, a trained officer witnessed a hand to hand transaction involving a known drug dealer where money was exchanged for a small object. We thus conclude that there was probable cause for appellant's seizure." League v. State, 778 So. 2d 1086 (Fla. 4th DCA 2001).

www.  "Although appellant contends that the court should have granted the motion to suppress, we cannot agree. Under the ‘totality of the circumstances’ test announced in State v. Butler, 655 So.2d 1123 (Fla.1995), the officers had probable cause to make the stop. We are persuaded, as was the court in Butler, by the existence of the credible confidential informant, the detail of the tip, and the subsequent corroboration of the tip. See also State v. Flowers, 566 So.2d 50 (Fla. 2d DCA 1990). The officers were told that an individual named Robin, who was at a certain residence on Sumner Drive in K-Ville, had drugs on her person. The confidential informant also said that Robin drove a four-door blue vehicle that was somewhat raggedy. When the officers arrived at the residence within ten to fifteen minutes of the tip, they saw only one vehicle, a small, blue, four-door vehicle, parked on the side of the residence. When they ran the tag number, they discovered that the car was registered to appellant, Robin Vandiver. Ten to fifteen minutes later, the vehicle left, and they could see that a white female was driving. When the officers subsequently stopped the car, they discovered drugs on her person. At each step of the investigation, the officers were able to further confirm the confidential informant's story. This was sufficient corroboration to support the stop." Vandiver v. State, 779 So. 2d 289 (Fla. 2d DCA 1998).

xxx.  An officer observed an exchange of money and drugs, but the officer could not see which of two men actually make the exchange. The officer stopped both men and patted down both men. As a result, the officer found contraband on the defendant, who was one of the two men. The trial judge denied a motion to suppress. On appeal, the court found that the stop was a valid investigatory stop, but the patdown could only be justified if the officer had probable cause to believe that a crime had been committed and that the defendant committed that crime. "Under the first prong of this test, the officer did have probable cause to believe a crime had occurred. He had seen what appeared to be a sale of drugs. The problem lies with the second prong of the probable cause analysis: that the officer must believe McCloud committed the crime. Here, the officer had no idea which of the two men was the perpetrator.... [T]he officer's observations ... did not create probable cause to believe McCloud had committed the crime. Probable cause does not exist where the circumstances are at least equally consistent with noncriminal activity. (citations omitted) Certainly, the circumstances in this case established a possibility that McCloud was the one who sold the drugs, but they were at least equally consistent with his simply being a bystander. If the officers had questioned the men and obtained information that pointed to McCloud as the seller, they might have developed the probable cause necessary for the warrantless search. As it was, the search was illegal and the drugs should have been suppressed." McCloud v. State, 787 So. 2d 218 (Fla. 2d DCA 2001).

yyy.  "[T]he sheriff's office received information from an unknown informant that Kimball was about to deliver ecstacy pills. The informant described Kimball and his automobile in detail. The informant said Kimball was presently en route to the Amoco gas station where he intended to deliver between 400 and 600 ecstacy pills to unknown persons at nine p.m. Deputies responded to the tip by positioning themselves in unmarked cars in the gas station parking lot. As predicted, Kimball entered the Amoco station at nine p.m. in a red Mazda MX 3. When he got out of his car, he was immediately seized and the vehicle was searched." The deputies discovered drugs. The trial court denied a motion to suppress on the grounds that the officers had probable cause. On appeal, the court reversed. "Here, the anonymous informant predicted that Kimball would arrive at the Amoco station at nine p.m. in a red Mazda MX-3. These are innocent details. Nevertheless, in contrast to the tip in J.L., the tip here did include accurate predictions about the suspect’s future actions. While someone may predict that a person will stop and get gas, it is unusual for that person to be able to predict the exact time and location that this will occur. Thus, when the deputies observed Kimball drive into the Amoco gas station at nine p.m., this did impart a degree of reliability to the information that we deem sufficient to support an investigative stop. We conclude, however, that on these limited facts and in the absence of exigent circumstances, consent, or incriminating or suspicious circumstances, the law enforcement agents lacked probable cause to seize Kimball and search the car.... We note that, with regard to the facts and circumstances sufficient to support probable cause, no distinction is made between search of a vehicle or a structure. The special authority to search a vehicle recognized in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and section 933.19, Florida Statutes, excuses only the warrant requirement; it does not reduce the degree of proof necessary to support probable cause to search. E.g., United States v. Mendoza, 722 F.2d 96 (5th Cir.1983)." Kimball v. State, 801 So. 2d 264 (Fla. 4th DCA 2001).

zzz.  "Considering the totality of the circumstances, probable cause was established for Marsdin's detention and the seizure of the bag. Although an anonymous tip, without more, is generally insufficient to demonstrate the informant's basis of knowledge or veracity, see Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), an anonymous tip corroborated by independent police work can exhibit sufficient indicia of reliability to provide reasonable suspicion to conduct a stop or probable cause to search. Id. at 330, 110 S.Ct. 2412. The reliability of such a tip is evaluated, among other considerations, on its degree of specificity, the extent of corroboration of predicted future conduct, and the significance of the informant's predictions. Kimball v. State, 801 So.2d 264, 265 (Fla. 4th DCA 2001)(citing Illinois v. Gates, 462 U.S. 213, 246, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Here, the anonymous tip, combined with independent police observation, was sufficient to provide reasonable suspicion to stop and probable cause to search.... In Kimball, by contrast, the deputies had not observed any suspicious activity prior to the search. Here, however, it was the detective who instructed when and where the drug transaction was to take place. When Marsdin, who matched the informant’s description, followed Lanza's directions, this behavior amounted to more than just innocent activity and was enough to support a finding of probable cause." Marsdin v. State, 813 So. 2d 260 (Fla. 4th DCA 2002).

4.  There must be lawful authority.  [Back]

a.   Misdemeanors, ordinances, and traffic offenses.   [Back]

(1)   A back-up officer may make an arrest for DUI based upon the probable cause of another officer. State v. Eldridge, 565 So. 2d 787 (Fla. 2d DCA 1990). See also State v. Ostrow, 579 So. 2d 292 (Fla. 3d DCA 1991); State v. Mahoy, 575 So.2d 779 (Fla. 5th DCA 1991); McClendon v. State, 440 So. 2d 52 (Fla. 1st DCA 1983).

(2)   An auxiliary trooper (Rayburn) approached the defendant's vehicle. It was apparent to Rayburn that the defendant had been drinking. So he ordered the defendant to remain in the car and radioed for assistance. Rayburn's supervisor (a police officer) arrived at the scene, investigated, and arrested the defendant. At the administrative hearing the defendant argued that his arrest was illegal because the arresting officer did not witness the misdemeanor as required by §901.15(5). The parties conceded that the auxiliary trooper did not make an arrest pursuant to §901.18, which authorizes an officer who is summoned to render aid to make an arrest. That officer has the same authority as the officer calling for aid. On appeal the court reversed because the officer rendering the aid can have only the power to arrest which the person requesting aid has. In this case that power was ambiguous, and was not adequately resolved by the circuit court. The district court, nevertheless, reversed because the statute required the requesting officer to be a "peace officer making a lawful arrest." The State conceded that the auxiliary officer never made an arrest for the DUI. "This concession on the part of the respondent, when we are faced with the clear language of section 901.18, which requires the first officer to be engaged in executing a lawful arrest, provides us no alternative but to conclude that the circuit court's reliance on that section to justify the legality of [the supervisor's] arrest is misplaced." Riehle v. Department of Highway Safety and Motor Vehicles, 684 So. 2d 623 (Fla. 2d DCA 1996).

(3)   96-413, Laws of Florida: Section 901.15 was amended: officer may make a warrantless arrest for chapter 316 violations "upon receiving information relayed to him or her from a fellow officer stationed on the ground or in the air that a driver has violated chapter 316 ... when reasonable and proper identification of the vehicle and the violation has been communicated to the arresting officer."

(4)   Marine patrol officers have the authority to make a traffic stop and then upon finding probable cause to arrest for DUI. State v. Parsons, 569 So. 2d 437 (Fla. 1990).

(5)   The Marine Patrol has the authority to board a boat to check for undersize oysters by virtue of administrative rule and statutory provisions. This does not violate any constitutional prohibitions. State v. Starkey, 605 So. 2d 963 (Fla. 1st DCA 1992).

(6)   If the arrest is for a misdemeanor all elements must occur in the presence of the officer and the arrest must be immediate or in fresh pursuit. State v. Stevens, 574 So. 2d 197 (Fla. 1st DCA 1991). But in another case the Court infers that a notice to appear is not to be treated as an arrest and may be issued even though the offense occurs outside the presence of the officer. State v. Wise, 603 So. 2d 61 (Fla. 2d DCA 1992).

(7) A female officer was summoned to arrest the defendant for nude dancing. She had not witnessed the crime and no officer who had witnessed it testified. Thus, the arrest by the female officer was unlawful since the offense did not occur in her presence. Nesmith v. State, 608 So. 2d 96 (Fla. 2d DCA 1992).

(8)   §901.15(1) precludes an officer from arresting a person for loitering and prowling if each element does not occur in the officer's presence. In this case, the arresting officer did not see the offense, but the defendants were caught at roadside in a car that had run out of gas. On appeal the court said they would have assuredly escaped if the officers had left to obtain a warrant. For that reason the court concluded that the arrest was lawful. "The cases relied on by defendants do not cite or discuss section 856.031 Florida Statutes, which states: '856.031 Arrest without warrant. - Any sheriff, policeman, or other law enforcement officer may arrest any suspected loiterer or prowler without a warrant in case delay in procuring one would probably enable such suspected loiterer or prowler to escape arrest.'" The court noted that, since the courts so frequently overlook this provision, the legislature should cross reference it in section 901.15. State v. Cortez, 705 So. 2d 676 (Fla. 3d DCA 1998).

(9)   The court ruled, "that when a person is charged with violating a municipal ordinance regulating conduct that is noncriminal in nature, such as in the traffic control area, section 901.15(1) only permits a person to be detained for the limited purpose of issuing a ticket, summons, or notice to appear. A full custodial arrest in such situations is unreasonable and a violation of the Fourth Amendment and article I, section 12 of the Florida Constitution." §901.15(1), provides that "‘[a] law enforcement officer may arrest a person without a warrant when ... the person has violated a municipal or county ordinance in the presence of the officer.’" The Court noted that while the U.S. Supreme Court has permitted searches for traffic violations in Robinson and Gustafson, those cases involved custodial arrests for such violations and the Court in those cases made no comment on "‘a routine traffic stop,’ i.e., when the violator is issued a citation or notice to appear and is allowed to proceed.... Because the latter scenario is all that is permitted by state traffic laws regulating bicycles, Robinson and Gustafson are not controlling." Thomas v. State, 614 So. 2d 468 (Fla. 1993).

(10)   A police officer issued the defendant a traffic citation for speeding rather than arrest the defendant. The officer did a full search of the car based solely on the fact that he issued the citation. The Court ruled that such a search violated the Fourth Amendment. "In Robinson we held that the authority to conduct a full field search as incident to an arrest was a ‘bright-line rule,’ which was based on the concern for officer safety and destruction or loss of evidence, but which did not depend in every case upon the existence of either concern. Here we are asked to extend that ‘bright-line’ rule to a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all. We decline to do so. The Court pointed out that, based upon additional facts establishing reasonable suspicion that the defendant is armed, officers might be authorized to do a pat down or an investigatory search of the passenger compartment. Knowles v Iowa, 523 U.S. 113, 119 S.Ct. 484, 142 L. Ed. 2d 492 (1998).

(11)   "[T]he Supreme Court has held that violation of a municipal ordinance is neither a 'crime' nor a 'noncriminal violation' as defined in the Florida Statutes. Thomas v. State, 614 So.2d 468, 472 (Fla. 1993)." Thus, Orlando's Youth Protection Ordinance is neither a crime nor a noncriminal violation. The defendant here looked under 18, but he was 18. Once the officers learned his age they no longer had any authority to detain him. Cuva v. State, 687 So. 2d 274 (Fla. 5th DCA 1997).

(12)   Instructing a defendant that he may be released on a notice to appear does not negate the officer's authority to do a search incidental to an arrest as long as the officer has probable cause. State v. McCray, 626 So. 2d 1017 (Fla. 2d DCA 1993).

(13)   A local ordinance provided for criminal penalties for riding a bicycle without a bell or a gong. On appeal the Court found that the ordinance was unlawful because under state statute such bicycle regulations are civil infractions and a city cannot impose a greater penalty than called for by state statute. The defendant was arrested for violating the ordinance and a search incidental to that arrest revealed a weapon. On appeal the Court held that even though the ordinance was found to be unconstitutional the search was valid. "The arrest was made in reliance on the city ordinance and thus falls within the rule established in Michigan v. DeFillippo, 443 U.S. 31 (1979). The Court in DeFillippo stated that evidence obtained after a search incident to an arrest in reliance on a municipal ordinance should not be suppressed even when the ordinance is subsequently declared unconstitutional." Thomas v. State, 614 So. 2d 468 (Fla. 1993).

(14)   "[T]he standard of probable cause ‘applie[s] to all arrests, without the need to ‘balance’ the interests and circumstances involved in particular situations.’ Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender. Atwater’s arrest satisfied constitutional requirements. There is no dispute that Officer Turek had probable cause to believe that Atwater had committed a crime in his presence. She admits that neither she nor her children were wearing seat belts, as required by Tex. Tran.Code Ann. § 545.413 (1999). Turek was accordingly authorized (not required, but authorized) to make a custodial arrest without balancing costs and benefits or determining whether or not Atwater’s arrest was in some sense necessary. Nor was the arrest made in an ‘extraordinary manner, unusually harmful to [her] privacy or ... physical interests.’ Whren v. United States, 517 U.S., at 818, 116 S.Ct. 1769. As our citations in Whren make clear, the question whether a search or seizure is ‘extraordinary’ turns, above all else, on the manner in which the search or seizure is executed. See id., at 818, 116 S.Ct. 1769 (citing Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (‘seizure by means of deadly force’), Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) (‘unannounced entry into a home’), Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (‘entry into a home without a warrant’), and Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) ( ‘physical penetration of the body’)). Atwater’s arrest was surely ‘humiliating,’ as she says in her brief, but it was no more ‘harmful to ... privacy or ... physical interests’ than the normal custodial arrest. She was handcuffed, placed in a squad car, and taken to the local police station, where officers asked her to remove her shoes, jewelry, and glasses, and to empty her pockets. They then took her photograph and placed her in a cell, alone, for about an hour, after which she was taken before a magistrate, and released on $310 bond. The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment." Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed.2d 549 (2001).

(15)   Officer Whitehead saw the car swerving and being operated erratically within the city limits. Officer Whitehead sent out a radio transmission. Officer Hardwick responded. Whitehead followed the defendant to the foot of a bridge. The car stopped. Whitehead then followed the car over the bridge and saw it cross the center line four times on the bridge. Whitehead also saw the vehicle almost hit several vehicles in the turn lane of an intersection. Hardwick did not see any of the erratic driving. Hardwick relied on Whitehead’s observations, which he was told about. Whitehead and Hardwick stopped the car outside of the city limits. Hardwick arrested the defendant because he looked drunk and failed field sobriety tests. The defendant refused to take a chemical test. The defendant’s license was suspended. The hearing officer upheld the suspension. The circuit court reversed on the grounds that the officer did not have probable cause for the stop, Hardwick was not in "fresh pursuit," and the fellow officer rule only applies to felonies. On appeal the court reversed. The stop was proper based on fresh pursuit or the felony officer rule. The manner in which the defendant was operating his vehicle was sufficient to justify the stop. "Section 901.18 authorizes an officer to elicit assistance from another officer; and the second officer has the authority to arrest based on the observations and report of the first officer. State v. Eldridge, 565 So.2d 787 (Fla. 2d DCA 1990); Steiner v. State, 690 So.2d 706 (Fla. 4th DCA 1997); Mahoy. The combined observations of two or more officers may be united to establish probable cause to arrest. Eldridge. The fellow officer rule applies to misdemeanor as well as felony offenses. Eldridge, Mahoy; Steiner. Further, an arrest made outside an officer’s jurisdiction is authorized by §901.25 where, as here, the officer is in fresh pursuit. Cheatem v. State, 416 So.2d 35 (Fla. 4th DCA 1982); Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985). Fresh pursuit included misdemeanor offenses. Edwards. Where there are signs of the offense continuing, the officer has authority to arrest a defendant outside of her jurisdiction for committing the offense within the jurisdiction. Edwards. In this case the erratic driving justified the stop and the defendant’s appearance and conduct after the stop justified the DUI arrest. Dept of Highway Safety and Motor Vehicles v. Leonard, 718 So. 2d 314 (Fla. 5th DCA 1998).

(16)   "A law enforcement officer may not make a warrantless arrest for a misdemeanor, such as this trespass, unless every element of the crime is committed in his presence. See §§ 901.15(1), Fla. Stat. (1997); Carter v. State, 516 So.2d 312 (Fla. 3d DCA 1987)." In this case, the court ruled that the officers had not observed every element of the involved trespass. For discussion see sec on trespass below. Smith v. State, 778 So.2d 329 (Fla. 2d DCA 2000).

b.   The felony arrest authority under §901.15(11), applies to road guard special officers employed by the department of agriculture and consumer services. Florida Police Benevolent Association, Inc. v. Department of Agriculture and Consumer Services, 574 So. 2d 120 (Fla. 1991).

c.   The defendant was arrested on a warrant for violation of probation and contraband was discovered. The trial judge determined that the defendant had not violated his probation and dismissed the warrant. It was determined that the defendant's probation had been illegally extended without a court hearing or representation of counsel based on the defendant's agreement. The warrant had been issued during this extension. The trial judge ruled that the warrant was void and the arrest was unlawful; therefore, the evidence secured incidental to that arrest had to be suppressed. The court affirmed. A void warrant may not be the basis for a legal arrest and search. State v. Schafer, 583 So. 2d 374 (Fla. 4th DCA 1991).

d.   An arrest was lawful even though some of the investigation took place outside of the investigating officer's jurisdiction where the investigation originated inside of his jurisdiction. Here the ultimate drug deal was outside of the officer's jurisdiction, but the officer called a deputy who did have jurisdiction to take over the investigation. A "municipal police officer has authority to conduct an investigation outside jurisdiction if the subject matter of investigation originated within his or her own jurisdiction." State v. Price, 589 So. 2d 1009 (Fla. 4th DCA 1991).

e.   An officer has no authority to make a stop outside his jurisdiction unless there are exigent circumstances or he is in fresh pursuit. State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA), rev. denied, 591 So.2d 184 (Fla. 1991).

f.   "While investigating a purse snatching that occurred in the City of Miami Shores, a Miami Shores detective received a tip that the vehicle that was used in the purse snatching was parked in front of a motel in the City of Miami. After contacting the City of Miami Police Department, the Miami Shores detective and other Miami Shores police officers proceeded to the motel. In the motel parking lot, they observed a red Nissan pickup truck that matched the description and the license plate number that had been reported by an eyewitness to the purse snatching. The officers kept the truck under surveillance until the defendant and two others got into the truck and started to drive away. The officers in marked cars stopped the truck with guns drawn and ordered the occupants out of the truck." That led to the discovery of a warrant and the arrest of the defendant. After the arrest the defendant was transported and his photo was taken. The trial judge granted a motion to suppress tangible evidence, including the photo because the officers were outside their jurisdiction. On appeal, the court reversed. The involved cities were parties to a mutual aid agreement, which permitted the officers of one city to investigate a felony in another city that occurred in the officer’s city. The defense argued that the agreement specifically excluded "nonconsensual or forcible entries into private dwellings, residences, living spaces or business spaces which are not open to the public" and the vehicle fell within the scope of this exclusion. "In the instant case, the Miami Shores detective acted within the scope of his jurisdiction, pursuant to the Addendum to Joint Declaration to Mutual Aid Agreement, when he investigated a felony in the City of Miami that had occurred within the City of Miami Shores. He properly notified the City of Miami when he received the tip and informed them of his intent to set up surveillance. Further, the Miami Shores detective had a reasonable suspicion, based on the vehicle’s description and license plate number, that the vehicle observed leaving the motel was the same vehicle involved in the robbery. This founded suspicion that the occupants had committed a crime was sufficient to justify an investigatory stop. State v. Ramos, 755 So.2d 836, 837 (Fla. 5th DCA 2000). After running a computer check based on the occupants’ information and finding that the defendant had an outstanding bench warrant, the detective had probable cause to arrest the defendant. Wigfall v. State, 323 So.2d 587, 589 (Fla. 3d DCA 1975). Therefore, the photograph was not the product of an illegal search and seizure. We reverse the order granting the motion to suppress and remand for further proceedings consistent with this opinion." State v. Walkin, 802 So. 2d 1169 (Fla. 3d DCA 2002).

g.   In a forfeiture case the defendant argued that § 321.05 Fla. Stat. restricted the authority of F.H.P. troopers to make warrantless searches to searches incidental to a lawful arrest. The court rejected this interpretation and found that troopers have the authority to act established by the Florida and U.S. Constitutions and other Florida Statutes. Dept of Highway Safety and Motor Vehicles v. Killen, 667 So. 2d 433 (Fla. 4th DCA 1996).

5.  Search may precede arrest as long as there is probable cause. State v. Hernandez, 706 So. 2d 66 (Fla. 2d DCA 1998); State v. Russell, 659 So. 2d 465 (Fla. 3d DCA 1995); Baggett v. State, 562 So. 2d 359 (Fla. 2d DCA 1990); State v. Miller, 565 So. 2d 886 (Fla. 2d DCA 1990); State v. James, 526 So. 2d 188 (Fla. 3d DCA 1988); State v. Smith, 529 So. 2d 1226 (Fla. 3d DCA 1988); State v. Brown, 586 So. 2d 473 (Fla. 4th DCA 1991). State v. Joseph, 593 So. 2d 594 (Fla. 3d DCA 1992); State v. McCray, 626 So. 2d 1017 (Fla. 2d DCA 1993); Butler v. State, 634 So. 2d 700 (Fla. 1st DCA 1994); State v. Harrington, 632 So. 2d 706 (Fla. 4th DCA 1994); State v. Hutchins, 636 So. 2d 552 (Fla. 2d DCA 1994).  [Back]

a.   Despite the foregoing cases, one recent case refers to an earlier decision that causes some confusion. The decision is Melton v. State, 75 So.2d 291 (Fla. 1954). In Melton the Court ruled that because the arrest followed the seizure, the seizure could not be upheld as incident to the arrest. Elliot v. State, 704 So. 2d 606 (Fla. 4th DCA 1997).

6.  Arrest may be on different charge than one later filed as long as there was probable cause. State v. Joyce, 529 So. 2d 791 (Fla.3d DCA 1988).  [Back]

a.   The defendant was ultimately arrested for DUI, although the initial stop resulted from probable cause for reckless driving and fleeing and eluding. The Court said: "The fact that they did not arrest [defendant] on these charges is of no moment; the propriety of an arrest does not turn on the charges upon which the arrest was effected." Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986). See also State v. Orozco, 607 So. 2d 464 (Fla. 3d DCA 1992).

b.   Arrest may be based on any charge for which the officer could have made a lawful arrest even though the arrest on the charged offense was invalid. State v. Carmody, 553 So. 2d 1366 (Fla. 5th DCA 1989). But one court holds that the charge on which the state relies to justify the search must prompt the officers to take action. Robinson v. State, 556 So. 2d 450 (Fla. 1st DCA 1990).

7.  Officer's mistake as to basis for search.  [Back]

a.   It did not matter that the officer mischaracterized his action as a standard inventory search as long as he did a search incidental to arrest. State v. Harrington, 632 So. 2d 706 (Fla. 4th DCA 1994).

b.   For an excellent discussion of the principle that the belief of the officer does not foreclose a finding of probable cause see State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA 1991) [Judge Cope dissenting].

c.   In this case the officer did not believe that he had probable cause, when he did have probable cause. On appeal the court said: "It seems well settled that the officer's personal opinion as to whether probable cause exists is irrelevant." The court may find probable cause and uphold a search even though the officer believed that he or she did not have probable cause. Knox v. State, 689 So. 2d 1224 (Fla. 5th DCA 1997).

8.  Must be incidental to the arrest and not remote.  [Back]

a.   Search of a suitcase was invalid where defendant was arrested several blocks from the bus where he shoved an officer and left the suitcase because the search of the suitcase was too remote from the arrest. State v. Brooks, 553 So. 2d 712 (Fla. 4th DCA 1989).

b.   Officers went to the defendant's place of business with a warrant for his arrest for lewd acts involving minors, which included taking photographs of them in the nude. One of the officers knew that the defendant was rarely far away from his camera case. The officers went into the store and asked the defendant where the camera case was and he stated that he did not know. The defendant was escorted outside and then led the officers back in to the store to get some photographs. The defendant was then arrested and removed from the area in a police car. Officers went back into the store and found the camera case within two or three feet from where the defendant had been standing. This was about five minutes after the defendant had been removed from the scene. The trial judge denied a motion to suppress based on a finding that the seizure of the camera case was incidental to a lawful arrest. On appeal the court affirmed. "Because the search was conducted immediately after the arrest, because the camera case was recovered from the area within the immediate control of [the defendant] just prior to and during the arrest, and in light of the exigency of the possibility of lost or destroyed evidence (even if not in the hands of the appellant), we believe the trial court was correct in finding the search of appellant's camera case to be reasonable." Gay v. State, 607 So. 2d 454 (Fla. 1st DCA 1992).

c.   "A warrantless search [of a motel room] incident to a lawful arrest is limited to the area within the immediate control of the defendant." In this case the defendant was arrested outside the motel room; therefore, a search incident to the arrest was not authorized. State v. Futch, 715 So. 2d 992 (Fla. 2d DCA 1998).

9.  What is the proper scope of such a search?   [Back]

a.   Incidental to arrest in home.   [Back]

(1)   Where officers are executing an arrest warrant in a home "as a precautionary matter and without probable cause or reasonable suspicion, [they may] look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that ... there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1073, 108 L. Ed 2d 276 (1990).

(2)   Officers went to the defendant's apartment to investigate reports of a stolen truck. The defendant answered the door. Events at the door resulted in his arrest for resisting arrest without violence. He was handcuffed to a chair in the living room. One of the officers immediately performed a "'protective sweep,' looking in the bedrooms, closets, and bathrooms for possible additional occupants." During this sweep the officer found firearms in the bedrooms or closets. There was no testimony that they were in plain view. The officer admitted that before entering the apartment he had no indication that there were firearms in the apartment. There was no evidence that the officers asked the neighbors, the apartment manager, or the defendant whether anyone else lived in the apartment. The court held that the search of the apartment was impermissibly broad. "In Buie (Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)), the Supreme Court held that police officers making an in-home arrest may as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Thus, Buie recognizes two types of searches pursuant to an in-home arrest: (1) "The initial 'precautionary sweep' without reasonable suspicion extends only to the immediately adjoining spaces, including closets, in which a person could hide." (2) "The latter and broader 'protective sweep,' based on articulable facts, is 'not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found.'" At the hearing in this case, "the State presented no evidence to support a precautionary sweep of the bedrooms, closets, and bathrooms. There is no testimony about the size of this apartment, or the location of these rooms. There is no evidence that these rooms were adjacent to or near the living room where Mr. Runge was arrested and handcuffed. Because the State failed to meet its burden to justify the warrantless precautionary sweep of Mr. Runge's apartment, we cannot uphold the search on that basis." The search could not be justified as a protective sweep because there was no evidence indicating that the officers knew of specific and articulable facts that would create a reasonable belief that the area searched might harbor an individual posing a danger to the officers. Runge v. State, 701 So. 2d 1182 (Fla. 2d DCA 1997).

(3)   Where the defendant was lawfully arrested in the kitchen a search of a metal box in the bedroom was unlawful because a search incidental to an arrest may not include the premises beyond where the arrest occurs nor may it include closed or concealed areas in the room where the arrest occurs. McVay v. State, 553 So. 2d 331 (Fla. 4th DCA 1989).

(4)   Officers went to a house to arrest the defendant on a warrant. They did not have a search warrant. They found him sitting on a bed. They immediately arrested him and handcuffed him. An officer observed a bulge in the mattress where the defendant had been sitting. The officer lifted up the mattress and found a handgun. The trial judge granted a motion to suppress the gun because the defendant had been handcuffed and the officers were no longer in danger. On appeal, the court reversed because this was a search incidental to an arrest. "In Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) the United States Supreme Court allowed an unwarranted search of ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary item.’ ... The holding of Chimel has been codified in section 901.21, Florida Statutes, which authorizes an officer making an arrest to search ‘the area within the person's immediate presence or control.’ See also Savoie v. State, 422 So.2d 308 (Fla.1982)(search of defendant's briefcase incident to an arrest upheld even though the search was not done until after defendant had been placed under arrest and handcuffed); New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)(search of pocket in defendant's jacket which was zipped closed and had been inside defendant's car upheld, even though defendant had already been arrested and handcuffed, and was being held outside the vehicle). The search under the mattress where appellant was sitting was accordingly proper." State v. Lingo, 796 So. 2d 1238 (Fla. 4th DCA 2001).

b.   Where the defendant was lawfully arrested for obstructing a domestic violence investigation, she asked an officer to take her fanny pack from a vehicle and give it to her husband. As the officer did so, he opened the pack and discovered contraband. A motion to suppress was denied. On appeal the court affirmed. There had been a report that one of the parties had a gun, but none had been found. The defendant argued that the officer was only authorized to pass the item to her husband. "‘This Officer was faced with an on-the-scene determination of what is reasonable conduct when a highly agitated person under arrest in a case involving an allegation of the presence of a firearm asked him to pass a closed pack to the other party to the dispute. Any reasonable officer could be expected to check such a pack for weapons before delivering it.... The test is whether a reasonably prudent officer would be warranted in the belief based on th[e] articulated facts that he is dealing with an individual who could be armed and dangerous. Terry v. Ohio .... Regarding the presence of a weapon, the officer is entitled to rely not just on defendant's assurances and a pat down of the person, but also on his own reasonable inferences from the facts. The facts here justified the search. Defendant argues that even if the arrest was justified, the scope of the search exceeded that which was necessary to eliminate the possibility of a weapon. Officer Callahan testified that the presence of a weapon such as the fountain-pen size firearm could not be eliminated by simply feeling the unopened pack, however.’" Here the search was permissible. Lawrence v. State, 668 So. 2d 701 (Fla. 5th DCA 1996).

D.  Was the search pursuant to voluntary consent?  [Back]

1.  The remaining issue, whether an officer must have a founded or reasonable suspicion of criminal activity or a reasonable belief that the defendant is armed before he or she requests consent to search, is more troublesome.... [W]e are persuaded by the reasoning presented in Albritton that an officer's request for consent to search is not a seizure and, therefore, does not require objective justification. Accordingly, in resolving the divergence of opinion between McElwain and Albritton, we elect to follow Albritton and hold that an officer need not have a reasonable or founded suspicion of criminal activity before seeking consent to search." Watts v. State, 788 So. 2d 1040 (Fla. 2d DCA 2001)(en banc). See also State v. Rivera, 813 So. 2d 233 (Fla. 2d DCA